As Filed With the Securities and Exchange Commission on November 20, 2012
Registration No. 333-____

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C.  20549
          

FORM S-8

REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933

ZBB ENERGY CORPORATION
(Exact name of registrant as specified in its charter)
 
 
 Wisconsin     39-1987014
 (State or other jurisdiction of incorporation or organization)    (I.R.S. Employer Identification  No.)
     
 
 N93 W14475 Whittaker Way    
 Menomonee Falls, Wisconsin       53051
 (Address of principal executive offices)     (Zip Code)
 
 

ZBB ENERGY CORPORATION 2012 NON-EMPLOYEE DIRECTOR EQUITY INCENTIVE PLAN
NONSTATUTORY STOCK OPTION AGREEMENTS ISSUED ON AUGUST 24, 2012 TO TONY SIEBERT
NONSTATUTORY STOCK OPTION AGREEMENTS ISSUED ON NOVEMBER 9, 2011 TO CHARLES W. STANKIEWICZ
 (Full title of plans)

Eric C. Apfelbach
President and Chief Executive Officer
ZBB Energy Corporation
N93 W14475 Whittaker Way
Menomonee Falls, Wisconsin  53051
(Name and address of agent for service)
(262) 253-9800
(Telephone number, including area code,
of agent for service)
________________

With a copy to:

Mark R. Busch
K&L Gates LLP
214 North Tryon Street, Suite 4700
Charlotte, NC 28202
(704) 331-7440

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company.  See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company in Rule 12b-2 of the Exchange Act.
Large accelerated filer  □                                                                               Accelerated filer  □
Non-accelerated  filer   □                                                                      Smaller reporting company   R
(Do not check if a smaller reporting company)
 
 
 
 
 
 
CALCULATION OF REGISTRATION FEE

Title of Securities  to be Registered
Amount to be Registered (1)
Proposed Maximum Aggregate Offering Price Per Share
Proposed Maximum Aggregate Offering Price
Amount of Registration Fee
2012 Non-Employee Director Equity Incentive Plan
Common Stock, par value $0.01 per share
               3,500,000
$0.19
 (2)
 $               665,000
 $                   90.71
Nonstatutory Stock Option Agreements Issued on August 24, 2012
Common Stock, par value $0.01 per share
                  200,000
$0.38
  (3)
 $               660,000
 $                   90.02
Nonstatutory Stock Option Agreements Issued on November 9, 2011
Common Stock, par value $0.01 per share
                  500,000
$0.79
  (3)
 $               945,000
 $                 128.90
Total Registration Fee
               4,200,000
   
 $            2,270,000
 $                 309.63

________________________

(1)
In addition, pursuant to Rule 416(a), this Registration Statement also covers such indeterminate number of additional shares of Common Stock as is necessary to eliminate any dilutive effect of any future stock split, stock dividend or similar transaction.

(2)
Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(c) and 457(h) of the Securities Act of 1933, as amended, and based on the average of the high and low prices for the Common Stock on November 16, 2012 as reported on the NYSE MKT.

(3)
Determined based on the per share exercise price of such options pursuant to Rule 457(h) of the Securities Act of 1933, as amended.
 
 
 
 
 
 
 
PART I

INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS


Item 1.  Plan Information.

           The information required by this Item 1 is omitted from this registration statement in accordance with Rule 428(b)(1) of the Securities Act of 1933, as amended (the “Securities Act”), and the Note to Part I of Form S-8.
 
 
Item 2.
Registrant Information and Employee Plan Annual Information.

           The information required by this Item 2 is omitted from this registration statement in accordance with Rule 428(b)(1) of the Securities Act and the Note to Part I of Form S-8.

PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT


Item 3.   Incorporation of Documents by Reference.

The following documents have been filed by ZBB Energy Corporation (the “Company”) with the Securities and Exchange Commission (the “SEC”) and are incorporated herein by reference:

·  
Annual Report on Form 10-K for the fiscal year ended June 30, 2012 filed on September 19, 2012;
 
·  
Quarterly Report on Form 10-Q for the quarter ended September 30, 2012 filed on November 13, 2012;
 
·  
Current Reports on Form 8-K filed on July 3, 2012, November 7, 2012 and November 9, 2012 (other than the portions of those documents furnished but deemed not to have been filed); and
 
·  
The description of the Company’s Common Stock contained in the Company’s Registration Statement on Form 8-A, filed with the SEC pursuant to Section 12(g) of the Exchange Act on June 13, 2007, including any further amendment or report filed hereafter for the purpose of updating such description.
 
All reports and other documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), after the date hereof, and prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference herein and to be part hereof from the date of filing of such reports and documents.  The Company is not incorporating by reference any documents or portions thereof that are not considered to be “filed” with the SEC.
 

 
 
1
 
Any statement contained herein or in a document incorporated or deemed to be incorporated herein by reference shall be deemed to be modified or superseded for purposes of this registration statement to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated herein by reference modifies or supersedes such earlier statement.  Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this registration statement.

Item 4.  Description of Securities.

Not applicable.

Item 5.
Interests of Named Experts and Counsel.

Not applicable.

Item 6.  Indemnification of Directors and Officers.

Sections 180.0850 to 180.0859 of the Wisconsin Business Corporation Law (“WBCL”) require a corporation to indemnify any director or officer who is a party to any threatened, pending or completed civil, criminal, administrative or investigative action, suit, arbitration or other proceeding, whether formal or informal, which involves foreign, federal, state or local law and which is brought by or in the right of the corporation or by any other person.  A corporation’s obligation to indemnify any such person includes the obligation to pay any judgment, settlement, penalty, assessment, forfeiture or fine, including any excise tax assessed with respect to an employee benefit plan, and all reasonable expenses including fees, costs, charges, disbursements, attorney’s and other expenses except in those cases in which liability was incurred as a result of the breach or failure to perform a duty which the director or officer owes to the corporation and the breach or failure to perform constitutes: (i) a willful failure to deal fairly with the corporation or its shareholders in connection with a matter in which the director or officer has a material conflict of interest; (ii) a violation of criminal law, unless the person has reasonable cause to believe his conduct was lawful or had no reasonable cause to believe his conduct was unlawful; (iii) a transaction from which the person derived an improper personal profit; or (iv) willful misconduct.

Unless otherwise provided in a corporation’s articles of incorporation or by-laws or by written agreement, an officer or director seeking indemnification is entitled to indemnification if approved in any of the following manners: (i) by majority vote of a disinterested quorum of the board of directors, or if such quorum of disinterested directors cannot be obtained, by a majority vote of a committee of two or more disinterested directors; (ii) by independent legal counsel; (iii) by a panel of three arbitrators; (iv) by affirmative vote of shareholders; (v) by a court; or (vi) with respect to any additional right to indemnification granted, by any other method permitted in Section 180.0858 of the WBCL.
 
 
 
2
 

 
Reasonable expenses incurred by a director or officer who is a party to a proceeding may be reimbursed by a corporation at such time as the director or officer furnishes to the corporation written affirmation of his good faith belief that he has not breached or failed to perform his duties and a written undertaking to repay any amounts advanced if it is determined that indemnification by the corporation is not required.

            The indemnification provisions of Sections 180.0850 to 180.0859 of the WBCL are not exclusive.  A corporation may expand an officer’s or director’s right to indemnification (i) in its articles of incorporation or by-laws; (ii) by written agreement between the director or officer and the corporation; (iii) by resolution of its board of directors; or (iv) by resolution that is adopted, after notice, of a majority of all of the corporation’s voting shares then issued and outstanding.

As permitted by Section 180.0858 of the WBCL, the Company has adopted indemnification provisions in its By-Laws which closely track the statutory indemnification provisions with certain exceptions.  In particular, Article V of the Company’s By-Laws provides (i) that an individual shall be indemnified unless it is proven by a final judicial adjudication that indemnification is prohibited, and (ii) payment or reimbursement of expenses, subject to certain limitations, will be mandatory rather than permissive.

As permitted by Section 180.0857 of the WBCL, the Company has also purchased director’s and officer’s liability insurance that insures the Company’s directors and officers against certain liabilities.

Item 7.    Exemption from Registration Claimed.

Not applicable.

Item 8.   Exhibits.

Reference is made to the attached Exhibit Index, which is incorporated herein by reference.

Item 9.  Undertakings.

(a)      The undersigned registrant hereby undertakes:

 
(1)
To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:

 
(i)
To include any prospectus required by Section 10(a)(3) of the Securities Act;

 
(ii)
To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this registration statement.  Notwithstanding the foregoing, any increase or decrease in the volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of a prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and
 
 
 
3
 

 
 
(iii)
To include any material information with respect to the plan of distribution not previously disclosed in this registration statement or any material change to such information in this registration statement;

 
provided , however , that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the SEC by the registrant pursuant to Section 13 or 15(d) of the Exchange Act that are incorporated by reference in the registration statement.

 
(2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

 
(3)  To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.

 
(b)  The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

 
(c)  Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions or otherwise, the registrant has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable.  In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
 
 
 
 
4
 
 
SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, the Company certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Menomonee Falls, State of Wisconsin, on November 20, 2012.
 
 
   ZBB ENERGY CORPORATION
   
   By    /s/ Eric C. Apfelbach                                   
   Eric C. Apfelbach
   President and Chief Executive Officer
   
   
 
POWER OF ATTORNEY

Each person whose signature appears below constitutes and appoints Eric C. Apfelbach and Will Hogoboom his or her true and lawful attorneys-in-fact and agents, each acting alone, with full powers of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all parties, to sign any and all amendments (including post-effective amendments) to this registration statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, each acting alone, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, each acting alone, or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed below by the following persons in the capacities and on the date indicated.

 
 
Position
Date
/s/ Eric C. Apfelbach  
 
President and Chief Executive Officer
November 20, 2012
Eric C. Apfelbach
 
(Principal executive officer) and Director
 
       
/s/ Will Hogoboom  
 
Chief Financial Officer
(Principal financial officer and  Principal accounting officer)
November 20, 2012
Will Hogoboom
       
/s/ Charles W. Stankiewicz
 
Executive Vice President, Operations and Director
November 20, 2012
 Charles W. Stankiewicz      
       
/s/ Paul F. Koeppe
 
Chairman and Director
November 20, 2012
Paul F. Koeppe      
       
/s/ Richard A. Abdoo
 
Director
November 20, 2012
Richard A. Abdoo      
       
/s/ Manfred Birnbaum
 
Director
November 20, 2012
Manfred Birnbaum      
       
/s/ James H. Ozanne  
 
Director
November 20, 2012
James H. Ozanne
     
       
/s/ Richard A. Payne  
 
Director
November 20, 2012
Richard A. Payne
     
       
/s/ Jeff Reichard  
 
Director
November 20, 2012
Jeff Reichard
     
       
 
 
 
 
5
 

 
EXHIBIT INDEX
 
 Exhibit  
  Number      Description
   
4.1 ZBB Energy Corporation 2012 Non-Employee Director Equity Incentive Plan (previously filed as Appendix B to the Proxy Statement for the Company’s 2012 Annual Meeting of Stockholders filed on September 25, 2012, which is incorporated herein by reference)
   
4.2 2012 Non-Employee Director Equity Incentive Plan Form Restricted Stock Unit Award Agreement, filed herewith
   
4.3 Form of Nonstatutory Option Agreements issued August 24, 2012 to Tony Siebert, filed herewith
   
4.4 Form of Nonstatutory Option Agreements issued November 9, 2011 to Charles Stankiewicz (previously filed as Exhibit 10.5 to the Company's Quarterly Report on Form 10-Q for the quarter ended December 31, 2011, which is incorporated herein by reference)
   
5 Opinion of Godfrey & Kahn, S.C., filed herewith
   
23.1 Consent of Godfrey & Kahn, S.C. (contained in Exhibit 5), filed herewith
   
23.2   Consent of Baker Tilly Virchow Krause, LLP, filed herewith
   
24  Power of Attorney (see page 5 )
   
 
 
 
6
 
 
 
 
 
Exhibit 4.2
 
ZBB ENERGY CORPORATION
2012 NON-EMPLOYEE DIRECTOR EQUITY COMPENSATION PLAN
RESTRICTED STOCK UNIT AWARD AGREEMENT


 
GRANTED TO
GRANT DATE
NUMBER OF RESTRICTED
STOCK UNITS
 
 
 
 
 
Note :  The number of Restricted Stock Units is based on a “divisor price” of $ [XX.XX] , which is the closing price per Share for the business day immediately preceding the grant date.
 
This Restricted Stock Unit Award Agreement and all Exhibits hereto (the “Agreement”) is made between ZBB Energy Corporation, a Wisconsin corporation (the “Company”), and you, a Director of the Company.
 
The Company sponsors the ZBB Energy Corporation 2012 Non-Employee Director Equity Compensation Plan (the “Stock Plan”).  A Prospectus describing the Stock Plan has been delivered to you.  The Stock Plan itself is available upon request, and its terms and provisions are incorporated herein by reference.  When used herein, the terms which are defined in the Stock Plan shall have the meanings given to them in the Stock Plan, as modified herein (if applicable).
 
The Restricted Stock Units covered by this Agreement are being awarded to you pursuant to the Company’s Director Compensation Policy, subject to the following terms and provisions:
 
1.  
Subject to the terms and conditions of the Stock Plan and this Agreement, the Company awards to you the number of Restricted Stock Units shown above.  Each Restricted Stock Unit shall have a value equal to the Fair Market Value of one (1) share of Stock (a “Share”).
 
2.  
You acknowledge having read the Prospectus and agree to be bound by all the terms and conditions of the Stock Plan and this Agreement.
 
3.  
The Restricted Stock Units covered by this Award shall become earned by, and payable to, you in the amounts and on the dates shown on the enclosed Exhibit A .
 
4.  
On the first day of each calendar year while you remain a Director, you shall be granted, automatically a number of additional Restricted Stock Units equal to (i) the aggregate amount of dividends (or distributions) which would have been received by a shareholder holding a number of Shares equal to the number of Restricted Stock Units covered by this Agreement on the record date of any such dividend or distribution on such date, divided by (ii) the Average Trading Price for the preceding calendar year. Additional Restricted Stock Units granted under this paragraph shall vest and be distributed on the same terms and in the same proportions as the Restricted Stock Units to which the dividends and distributions relate. “Average Trading Price” means the average of the Fair Market Values on the last trading day of each full quarter included within the subject year.
 
 
 
 
 
 
5.  
You agree that you shall comply with (or provide adequate assurance as to future compliance with) all applicable securities laws and income tax laws as determined by the Company as a condition precedent to the delivery of any Shares pursuant to this Agreement.  In addition, you agree that, upon request, you will furnish a letter agreement providing that (i) you will not distribute or resell any of said Shares in violation of the Securities Act of 1933, as amended, (ii) you will indemnify and hold the Company harmless against all liability for any such violation and (iii) you will accept all liability for any such violation.
 
6.  
You may designate a beneficiary to receive payment in connection with the Restricted Stock Units awarded hereunder in the event of your death while in service with the Company in accordance with the Company’s beneficiary designation procedures, as in effect from time to time.  If you do not designate a beneficiary or if your designated beneficiary does not survive you, then your beneficiary will be your estate.
 
7.  
The existence of this Award shall not affect in any way the right or power of the Company or its stockholders to make or authorize any or all adjustments, recapitalizations, reorganizations or other changes in the Company’s capital structure or its business, or any merger or consolidation of the Company, or any issue of bonds, debentures, preferred or prior preference stocks ahead of or convertible into, or otherwise affecting the Company’s common stock or the rights thereof, or the dissolution or liquidation of the Company, or any sale or transfer of all or any part of its assets or business, or any other corporate act or proceeding, whether of a similar character or otherwise.
 
8.  
The Company may, in its sole discretion, decide to deliver any documents related to this grant or future Awards that may be granted under the Stock Plan by electronic means or request your consent to participate in the Stock Plan by electronic means.  You hereby consent to receive such documents by electronic delivery and, if requested, agree to participate in the Stock Plan through an on-line or electronic system established and maintained by the Company or another third party designated by the Company.
 
Any notice which either party hereto may be required or permitted to give to the other shall be in writing and may be delivered personally, by intraoffice mail, by fax, by electronic mail or other electronic means, or via a postal service, postage prepaid, to such electronic mail or postal address and directed to such person as the Company may notify you from time to time; and to you at your electronic mail or postal address as shown on the records of the Company from time to time, or at such other electronic mail or postal address as you, by notice to the Company, may designate in writing from time to time.
 
9.  
Regardless of any action the Company takes with respect to any or all income tax, payroll tax or other tax-related withholding (Tax-Related Items), you acknowledge that the ultimate liability for all Tax-Related Items owed by you is and remains your responsibility and that the Company (i) makes no representations or undertakings regarding the treatment of any Tax-Related Items in connection with any aspect of the grant of Restricted Stock Units, including the grant and vesting of the Restricted Stock Units the subsequent sale of Shares acquired upon the vesting of the Restricted Stock Units and the receipt of any dividends; and (ii) does not commit to structure the terms of the grant or any aspect of the Restricted Stock Units to reduce or eliminate your liability for Tax-Related Items.
 
In the event the Company determines that it must withhold any Tax-Related Items as a result of your participation in the Stock Plan, you agree as a condition of the grant of the Restricted Stock Units to make arrangements satisfactory to the Company to enable it to satisfy all withholding requirements, including, but not limited to, withholding any applicable Tax-Related Items from the pay-out of the Restricted Stock Units.  In addition, you authorize the Company to fulfill its withholding obligations by all legal means, including, but not limited to:  withholding Tax-Related Items from your other cash compensation the Company pays to you; withholding Tax-Related Items from the cash proceeds, if any, received upon sale of any Shares received in payment for your Restricted Stock Units; and at the time of payment, withholding Shares sufficient to meet minimum withholding obligations for Tax-Related Items.  The Company may refuse to issue and deliver Shares in payment of any earned Restricted Stock Units if you fail to comply with any withholding obligation.
 
 
 
10.  
The validity, construction and effect of this Agreement are governed by, and subject to, the laws of the State of Wisconsin, as provided in the Stock Plan.
 
11.  
In the event any provision of this Agreement shall be held illegal or invalid for any reason, the illegality or invalidity shall not affect the remaining parts of the Agreement, and the Agreement shall be construed and enforced as if the illegal or invalid provision had not been included. This Agreement constitutes the final understanding between you and the Company regarding the Restricted Stock Units. Any prior agreements, commitments or negotiations concerning the Restricted Stock Units are superseded.  Subject to the terms of the Stock Plan, this Agreement may only be amended by a written instrument signed by both parties.
 
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by its duly authorized officer, and you have hereunto set your hand, all effective as of the Grant Date listed above.
 
ZBB ENERGY CORPORATION                                                                                  DIRECTOR
 

 
By: ___________________________________________        
 
_______________________________________
     Name: _______________________________________
 
     Title:  _______________________________________
 

 
 
 
 
 
 
EXHIBIT A
ZBB Energy Corporation
2012 Non-Employee Director Equity Compensation Plan
 
Vesting and Payment of Restricted Stock Units
 
( a )             Vesting Schedule .  Subject to the provisions of paragraphs (b) and (c), the Restricted Stock Units shall become earned and vested as follows:
 
[________]

(b)            Impact of Separation from Service .  If you have a Separation from Service prior to any of the above vesting date(s) for any reason (including your death or disability), then any Restricted Stock Units that had not yet become earned and vested under paragraph (a) above shall be immediately canceled as of the date of such Separation from Service.  For purposes of this Award, a “Separation from Service” means your “separation from service” with the Company within the meaning of Section 409A of the Code.
 
(c)            Impact of Change in Control .   Notwithstanding any provision of the Stock Plan or this Agreement to the contrary, in the event of a Change in Control prior to your Separation from Service, any Restricted Stock Units that had not yet become earned and vested under paragraph (a) above shall become earned and vested as of the date of the Change in Control.

(d)            Timing and Form of Payment .  Any Restricted Stock Units that become earned and vested in accordance with paragraphs (a) and (c) above shall be payable to you at the earlier of (i) the date that is six months after your Separation from Service or (ii) the date of a Change in Control, provided that for purposes of this paragraph (d), the Company shall not be deemed to have undergone a Change in Control unless the Company is deemed to have undergone a “change in control event” pursuant to the definition of such term in Section 409A of the Code.   Payment shall be made in the form of one Share for each Restricted Stock Unit that is payable.

(e)            Section 409A .  This Award is intended to comply with the requirements of Section 409A of the Code, to the extent applicable.  Notwithstanding any provision of the Stock Plan or this Agreement to the contrary, the Award shall be interpreted, operated and administered consistent with this intent.



 

 
 
Exhibit 4.3


ZBB ENERGY CORPORATION

NONSTATUTORY STOCK OPTION AGREEMENT

This Nonstatutory Stock Option Agreement (this “Agreement”) is executed as of August 24, 2012, by and between ZBB ENERGY CORPORATION, a Wisconsin corporation (the “Company”), and Tony Siebert (“Employee”).

W I T N E S S E T H:

WHEREAS, the Compensation Committee of the Board of Directors of the Company wishes to grant Employee a Nonstatutory Stock Option in conjunction with Employee’s appointment as Vice President of Sales & Product Marketing of the Company subject to the terms provided in this Agreement; and

WHEREAS, the Compensation Committee of the Board of Directors of the Company anticipates that this Agreement will promote the best interests of the Company and its shareholders by providing Employee a proprietary interest in the Company with a stronger incentive to put forth maximum effort for the continued success and growth of the Company and its subsidiaries.

NOW, THEREFORE, in consideration of the benefits that the Company will derive in connection with the services to be rendered by Employee, the Company and Employee hereby agree as follows:

1.   Determinations by Administrator .  The Administrator (as defined below) shall make all interpretations, rules and regulations necessary to administer this Agreement, and such determinations of the Administrator shall be binding upon Employee.  For purposes of this Agreement, the term “Administrator” shall mean the Compensation Committee of the Board of Directors.

2.   Option; Number of Shares; Option Price .  The Option (as defined below) granted hereunder is intended to be a nonstatutory stock option and therefore, shall not qualify as an incentive stock option pursuant to Section 422 of the Internal Revenue Code of 1986, as amended.  Employee shall have the right and option to purchase all or any part of an aggregate of  [________] shares of $0.01 par value common stock of the Company (“Share(s)”) at the purchase price of $0.38 per Share (the “Option”).

3.   Vesting and Expiration .

(a)            Vesting .  The Option shall vest (become exercisable) and remain exercisable only in accordance with Annex 1 attached hereto.
 
 
 
 
 

 
(b)            Expiration .  To the extent not previously exercised according to the terms hereof,  the Option shall expire on the eighth anniversary of the date hereof.

4.   Exercise Period .

(a)            Disability .  Upon Employee’s termination of employment due to a Disability, Employee shall have one (1) year from the date of such termination to exercise the Option granted hereunder as to all or part of the Shares subject to this Option; provided , however , that this Option shall not be exercisable subsequent to the expiration date specified in Section 3(b), above.

(b)            Death .  Upon Employee’s termination of employment due to death, the Option, as to all or any part of the Shares subject to this Option, shall be exercisable:
 
(1)           for one (1) year after Employee’s death, but in no event subsequent to the expiration dates specified in Section 3(b), above; and

(2)           only (i) by the designated beneficiary of Employee (such designation to be made in writing at such time and in such manner as the Administrator shall approve or prescribe), or, if Employee dies without a surviving designated beneficiary, (ii) by the personal representative, administrator, or other representative of the estate of Employee, or by the person or persons to whom the deceased rights of Employee under the Option shall pass by will or the laws of descent and distribution.  Employee may change the beneficiary designation at any time, by giving written notice to the Administrator, subject to such conditions and requirements as the Administrator may prescribe in accordance with applicable law.

(c)            Other Terminations of Employment .  Upon Employee’s termination of employment for any reason other than those specified above in this Section 4, Employee shall have ninety (90) days from the date of such termination to exercise the Option as to all or part of the Shares, provided Employee has a present right to exercise such Option as of the date of such termination; provided , however , that the Option shall not be exercisable subsequent to the expiration dates specified in Section 3(b), above.  Notwithstanding the foregoing, if Employee’s employment is terminated for Cause (as defined in Employee’s offer letter of employment dated October 24, 2011 (the “Offer Letter”)), to the extent the Option held by Employee is not effectively exercised prior to such termination, it shall lapse immediately upon such termination.

(d)            Extension of Exercise Period .  The Administrator may in its sole discretion extend the period permitted for exercise of the Option upon Employee’s termination of employment as otherwise provided in this Section 4 if allowable under applicable law.

5.   Method of Exercising Option .  Except as otherwise permitted by the Administrator, the Option shall be exercisable by delivery to the Company (to the attention of its Secretary), at its offices in Menomonee Falls, Wisconsin, of (i) written notice identifying the Option and stating the number of Shares with respect to which it is being exercised, (ii) payment in full of the exercise price of the Shares then being acquired as provided in Section 6, below, and (iii) execution of such other documentation as is determined to be necessary or appropriate by the Administrator from time to time the form of which shall be provided to Employee at the time of execution and delivery of this Agreement.  The Company shall have the right to delay the issue or delivery of any Shares to be delivered hereunder until (i) the completion of such registration or qualification of such Shares under federal, state, or foreign law, ruling, or regulation as the Company shall deem to be necessary or advisable, and (ii) receipt from Employee of such documents and information as the Administrator may deem necessary or appropriate in connection with such registration or qualification or the issuance of Shares hereunder.
 
 
 
 
 
6.   Payment of Exercise Price .  The exercise price shall be payable in whole or in part in cash, Shares held by Employee, other property, or such other consideration consistent with the Agreement’s purpose and applicable law as may be determined by the Administrator from time to time.  Except as otherwise determined by the Administrator at the time of grant, such price shall be paid in cash in full at the time that the Option is exercised.  If Employee is permitted by the Administrator to pay all or a part of the exercise price in Shares and elects to do so, Employee may make such payment by delivering to the Company a number of Shares, either directly or by attestation, which are equal in value to the purchase or exercise price hereunder.  For this purpose, all Shares so delivered shall be valued per share at the Fair Market Value (as defined above; provided , however , if a Share is not susceptible to valuation by the above method, the term “Fair Market Value” of a Share shall mean the fair market value of a Share as the Administrator may determine in conformity with pertinent law) of a Share on the business day immediately preceding the day on which such Shares are delivered.

7.   Prohibition Against Transfer .  Unless otherwise provided by the Administrator and except as provided below, the Option, and the rights and privileges conferred hereby, may not be transferred by Employee, and shall be exercisable during the lifetime of Employee only by Employee.  The Option shall not be subjected to execution, attachment or similar process.  Employee shall have the right to transfer the Option upon Employee’s death, either to Employee’s designated beneficiary (such designation to be made in writing at such time and in such manner as the Administrator shall approve or prescribe), or, if Employee dies without a surviving designated beneficiary, by the terms of Employee’s will or under the laws of descent and distribution, subject to any limitations set forth in this Agreement and all such distributees shall be subject to all terms and conditions of this Agreement to the same extent as Employee would be if still living.

8.   Nature of Option .  Employee shall not have any interest in any fund or in any specific asset or assets of the Company by reason of the Option granted hereunder, or any right to exercise any of the rights or privileges of a stockholder with respect to the Option until Shares are issued in connection with any exercise.

9.   Adjustment provisions .

(a)            Share Adjustments .  In the event of any stock dividend, stock split, recapitalization, merger, consolidation, combination or exchange of shares of Company stock, or the like, as a result of which shares of any class shall be issued in respect of the outstanding Shares, or the Shares shall be changed into the same or a different number of the same or another class of stock, or into securities of another person, cash or other property (not including a regular cash dividend), the number of Shares subject to the Option and the exercise price applicable to the Option shall be appropriately adjusted in such equitable and proportionate amount as determined by the Administrator.  No fractional Share shall be issued under the Agreement resulting from any such adjustment but the Administrator in its sole discretion may make a cash payment in lieu of a fractional Share.
 
 
 
 
 

 
(b)            Acquisitions .  In the event of a merger or consolidation of the Company with another corporation or entity, or a sale or disposition by the Company of all or substantially all of its assets, the Administrator shall, in its sole discretion, have authority to provide for (i) waiver in whole or in part of any remaining restrictions or vesting requirements in connection with the Option granted hereunder, (ii) the conversion of the outstanding Option into cash, (iii) the conversion of the Option into the right to receive securities, including options, of another person or entity upon such terms and conditions as are determined by the Administrator in its sole discretion and/or (iv) the lapse of the Option after notice in writing has been given that the Option may be exercised within a set period from the date of such notice and that any Option not exercised within such period shall lapse.

(c)            Binding Effect .  Without limiting the generality of what is provided in Section 1 hereof and for avoidance of doubt, any adjustment, waiver, conversion or other action taken by the Administrator under this Section 9 shall be conclusive and binding on Employee and the Company and any respective successors and assigns.

10.   Notices .  Any notice to be given to the Company under the terms of this Agreement shall be given in writing to the Company at its offices in Menomonee Falls, Wisconsin.  Any notice to be given to Employee may be addressed to Employee’s address as it appears on the payroll records of the Company or any subsidiary thereof.  Any such notice shall be deemed to have been duly given if and when actually received by the party to whom it is addressed, as evidenced by a written receipt to that effect.

11.   Taxes .  The Company may require payment or reimbursement of or may withhold any minimum tax that it believes is required as a result of the grant or exercise of the Option, and the Company may defer making delivery with respect to Shares or cash payable hereunder or otherwise until arrangements satisfactory to the Company have been made with respect to such withholding obligations.

12.   Rights of Employee .  The Option, and any payments or other benefits received by Employee under the Option, is discretionary and shall not be deemed a part of Employee’s regular, recurring compensation for any purpose, including without limitation for purposes of termination, indemnity, or severance pay law of any country and shall not be included in, nor have any effect on, the determination of benefits under any other employee benefit plan, contract or similar arrangement provided to Employee unless expressly so provided by such other plan, contract or arrangement, or unless the Administrator expressly determines otherwise .

13.   Amendment .  The Administrator may amend the Agreement; provided , however , that Employee’s consent to such action shall be required unless the Administrator determines that the action, taking into account any related action, would not materially and adversely affect Employee.  However, notwithstanding any other provision of the Agreement, the Administrator may not adjust or amend the exercise price of the Option, whether through amendment, cancellation and replacement grants, or any other means, except in accordance with Section 9 hereof.
 
 
 
 
 

 
14.   No Right To Employment .  The Agreement shall not confer upon Employee any right to continue employment with the Company or a subsidiary, nor shall it interfere in any way with the right of the Company or such subsidiary to terminate Employee’s employment any time.

15.   Entire Agreement .  This Agreement to constitutes the final understanding between Employee and the Company regarding the Option.

16.   Severability .  In the event any provision of this Agreement shall be held illegal or invalid for any reason, the illegality or invalidity shall not affect the remaining parts of the Agreement, and this Agreement shall be construed and enforced as if the illegal or invalid provision had not been included.

17.   Governing Law .   This Agreement and all actions taken hereunder shall be governed by, and construed in accordance with, the laws of the State of Wisconsin, applied without regard to the laws of any other jurisdiction that otherwise would govern under conflict of law principles.

 
 
 
 
 
 
 
 

 
IN WITNESS WHEREOF, the Company has caused these presents to be executed as of the date and year first above written, which is the date of the granting of the Option evidenced hereby.
 
 

 
   ZBB ENERGY CORPORATION
   
   
   By:  _________________________________________
           Name:
           Title:
   
 


The undersigned Employee hereby accepts the foregoing Option and agrees to the several terms and conditions hereof.



 
  ______________________________________________
  Employee
 
 
 
 
 
 
Exhibit 5
 
 
 
 
November 20, 2012
 
ZBB Energy Corporation
N93 W14475 Whittaker Way
Menomonee Falls, Wisconsin  53051
 
 
RE:
Registration Statement on Form S-8
 
Gentlemen:
 
We have acted as special counsel to ZBB Energy Corporation (the “Company”) in connection with the Registration Statement on Form S-8 (the “Registration Statement”) to be filed with the Securities and Exchange Commission on or about November 20, 2012 relating to the issuance by the Company of up to 4,200,000 shares of common stock, $0.01 par value (the “Shares”), consisting of up to 3,500,000 shares issuable pursuant to the ZBB Energy Corporation 2012 Non-Employee Director Equity Incentive Plan (the “Plan”), up to 200,000 shares issuable pursuant to the Nonstatutory Stock Option Agreements issued on August 24, 2012 to Tony Siebert (the “August 2012 Options”) and up to 500,000 shares issuable pursuant to the Nonstatutory Stock Option Agreements issued on November 9, 2011 to Charles Stankiewicz (the “November 2011 Options”), in the manner set forth in the Registration Statement.
 
We have examined:  (1) the Registration Statement, (2) the Company’s Restated Articles of Incorporation, and By-Laws, each as amended to date, (3) certain resolutions of the Company’s Board of Directors, (4) the Plan, the August 2012 Options and the November 2011 Options, and (5) such other proceedings, documents and records as we have deemed necessary to enable us to render this opinion.
 
In examining the foregoing documents, we have assumed the genuineness of all signatures and the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified, photostatic or facsimile copies, and the authenticity of the originals of any such documents.
 
Based on and subject to the foregoing, we are of the opinion that the Shares, when issued as contemplated in the Registration Statement and in accordance with the Plan, any related award agreement, the August 2012 Options and the November 2011 Options, as the case may be, will be duly authorized, validly issued, fully paid and nonassessable.
 
 
 
IMAGE
 
 
 
ZBB Energy Corporation
November 20, 2012
Page
 
 
We consent to the use of this opinion as an exhibit to the Registration Statement.  In giving this consent, however, we do not admit that we are experts, or within the category of persons whose consent is required by Section 7 of said Act.
 
 
   Very truly yours,
   
    /s/ Godfrey & Kahn, S.C.
   
   GODFREY & KAHN, S.C.
 
 

8734347_1
 
 
 
 
 
 
 
 
Exhibit 23.2



CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM



We consent to the incorporation by reference in this Registration Statement on Form S-8 of ZBB Energy Corporation of our report dated September 19, 2012 (which report includes an explanatory paragraph relating to ZBB Energy Corporation’s ability to continue as a going concern) relating to the consolidated financial statements of ZBB Energy Corporation appearing in the Annual Report on Form 10-K of ZBB Energy Corporation for the year ended June 30, 2012.


/s/ BAKER TILLY VIRCHOW KRAUSE, LLP




Milwaukee, Wisconsin
November 20, 2012